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FOIL Appeal Determination for 10-14-6A (Bond, Schoeneck & King, PLLC, Attention: Jennifer Walther, June 8, 2010)

CERTIFIED MAIL: RETURN RECEIPT REQUESTED

June 8, 2010

Bond, Schoeneck & King, PLLC
Attn: Jennifer G. Walther
One Lincoln Center
Syracuse, NY 13202-1355

re: Freedom of Information Law appeal # 10-14-6A
Freedom of Information Law request # 10-53

Dear Ms. Walther:

Background

You made a request for access to records pertaining to "All permitted aggregate (quarry) operators ... All permitted asphalt plant operators ... [and] All permitted concrete plant operators" in Department of Environmental Conservation Region 6 [Counties of Herkimer, Jefferson, Lewis, Oneida and St. Lawrence], "their locations, and their total annual volume in tons per location for the last five years" by your letter dated April 23, 2010.

That request was acknowledged by the Regional Citizen Participation Specialist's letter dated April 29, 2010 to you.

That request was granted in part and denied in part by the Regional Citizen Participation Specialist's letter dated May 24, 2010 to you, which partial denial consisted of the withholding of certain unspecified records upon the ground that the withheld records were exempt pursuant to Public Officers Law § 87(2)(g): the letter recites, "There are documents being withheld from your request. These pages consist of comments and opinions on the subject and are being withheld in accordance with Article VI, 87.2(g) of the Public Officers Law as they constitute intra-agency materials that are not statistical or factual tabulations of data, instructions to staff that affect the public, final agency policy determinations or external audits".

You made an appeal from that partial denial by your letter dated May 27, 2010: the letter states, "According to a letter from Stephen Litwhiler dated May 24, 2010, the documents withheld were considered exempt from disclosure under Public Officer's Law § 87(2)(g) as the records consist of comments and opinions on the subject and constitute intra-agency materials that are not statistical or factual tabulations of data, instructions to staff that affect the public, final agency policy determinations or external audits".

That appeal was acknowledged by the FOIL Appeals Officer's letter dated June 2, 2010 to you.

Thereafter, I made inquiry to this Department's Region 6 staff.

Based on the results of that inquiry, I am able to advise you that the withheld records consist of the following:

  • memo dated January 10, 1989 from T. Morgan to D. Prosser re "'Eden' USA, Inc."
  • memo dated February 23, 1989 from J. Homburger to R. Drew re "Hearings Request, Sears Oil Company, Inc. 1914 Black River Boulevard, Rome, New York 13440" with attached Hearings Request dated February 21, 1989 re "Project Number 67-84-0021"
  • memo dated April 12, 1989 from B. Waterfall to P. John re "Domermuth Petroleum MSRU"
  • draft Permit Number 0-9999-00033/00001-9 dated April 14, 1989
  • memo dated July 12, 1989 from J. Homburger to J. Sandwick re "Alliance Paving Materials, Inc., Modification to Air Permit, UPA #301300-0497-00001"
  • memo dated July 17, 1989 from J. Sandwick to D. Prosser re "Alliance Paving Materials, Inc., Modification to Air Permit, 3001300-0497-00001, Rome (C), Oneida Co."
  • memo dated August 1, 1989 from T. Morgan to J. Sandwick re "Alliance Paving Materials, Rome, NY / Eden USA, Inc."
  • memo dated September 1, 1989 from P. John to Regional Air Pollution Control Engineers re "Mobile Soil Remediation Unit (MSRU) 'Dirt Burner'"
  • memo dated September 14, 1989 from D. Prosser to J. Sandwick re "Alliance Paving Materials and/or Eden 'USA' Rome (C), Oneida County Application No. 301300049700001"
  • memo dated October 30, 1989 from J. Sandwick to J. Drabicki re "Alliance Paving Materials, Inc. ('Eden' U.S.A., Inc.) Rome (C), Oneida County"
  • and ten pages of anonymous handwritten notes which, with one exception, are undated: I am advised that these handwritten notes were found in a file containing documents dated circa 1989, which circumstance supports the inference that these handwritten notes were created in that same period, and moreover the one page of handwritten notes which is dated bears the date November 3, 1989, which tends to confirm the inference drawn from that circumstance.

Discussion

Inasmuch as your request for access was specifically limited to records "for the last five years", all of the withheld records are nonresponsive.

Determination

Because the denial from which this appeal was made was a denial of access to nonresponsive records, this appeal is moot, and it is therefore dismissed.

This determination is a final agency action.

Please take notice that, pursuant to Public Officers Law § 89(4)(b), you may obtain review of this determination by bringing a proceeding in court pursuant to Civil Practice Law and Rules Article 78.

Cordially,

/s/

James H. Eckl
FOIL Appeals Officer

cc: Committee on Open Government
Department of State
One Commerce Plaza
99 Washington Avenue
Albany, NY 12231-0001


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